updated 7/8/2004 12:23:15 PM ET 2004-07-08T16:23:15

Guests:  Mickey Sherman, William Fallon, Gloria Allred, Dr. Werner Spitz, Charles Gasparino, Dana Cole, Robin Shellow, Jack Thompson

RIKKI KLIEMAN, GUEST HOST:  Coming up, disturbing testimony in the Scott Peterson trial that even Scott could not watch. 

(BEGIN VIDEOTAPE)

KLIEMAN (voice-over):  Key details about where and how bodies belonging to his wife Laci and unborn son Conner were found, but do they help prove the prosecution murder theory? 

Plus, a first look at the testimony a grand jury used to indict Michael Jackson. 

And he shot and killed his teacher when he was just 13.  Now Nathaniel Brazill is firing his lawyer and trying to represent himself, but he is only 17. 

The program about justice starts right now.  

(END VIDEOTAPE)

KLIEMAN:  Hi everyone.  I‘m Rikki Klieman.  Dan is off today. 

There is late word that former Enron chairman, Ken Lay, has been indicted.  We‘ll get those details soon.

But first up on the docket, day 20 in the Scott Peterson trial, with testimony from the first police officers to arrive at the scene where the bodies of Laci Peterson and her unborn son were found.  The testimony and the pictures are so graphic, for the first time since the trial began, Laci Peterson‘s mother and stepfather not present for the beginning of court today, slipping in after testimony shifted from the discovery of the body to the day Scott Peterson went fishing at the marina.

MSNBC‘s Jennifer London is outside San Mateo Superior Court with much more.  Jennifer, testimony began today with the cross-examination of Elena Gonzales.  She‘s the woman who found Laci‘s body.  So what did the jury learn? 

JENNIFER LONDON, MSNBC CORRESPONDENT:  Well Rikki testifying today telling the jury that she was there along the shoreline with her dog.  Another dog caught her attention.  She followed that dog and that is when she discovered Laci Peterson‘s body.  Gonzalez also telling the jury that she found something else.  Mark Geragos asking at some point, did you make another discovery, about 11:45, did you find a glove at some point?  Gonzalez saying yes. 

Geragos:  And you collected that with a plastic bag, sealed it for evidence. 

Gonzalez:  Well, at the dog park, they have poop bags.  We didn‘t want to touch the glove so we got a stick and put it in the bag. 

Gonzalez saying she found this glove two days after discovering Laci Peterson‘s body.  Now the defense contends that Laci Peterson‘s body did not wash ashore as the prosecution says.  Rather, the real killers dumped her body there to frame Scott Peterson. 

Also today we heard from two investigators who were first called to the scene.  They described the horrible condition the bodies were in, saying neither body was recognizable.  Some jurors having a hard time with today‘s testimony.  Many looking away, some wiping their eyes.  Scott Peterson also turning his head when pictures of the remains were displayed in court. 

And for the very first time Scott Peterson speaking openly in court.  He said just three words.  This when Judge Delucchi asked for clarification on the spelling of Conner‘s name.  Does it end with an “e-r” or an “o-r”?  Scott Peterson saying “e-r” Your Honor. 

Also today we heard from workers at the Berkley Marina as well as the man who sold Scott Peterson his fishing boat.  We also heard from the manager of the Big 5 store with Scott Peterson bought some fishing supplies. 

And Rikki, on the stand right now is a woman named Kim Fulbright (ph). 

She words for the Stanislaus County D.A.‘s office.

KLIEMAN:  And I want to ask you one question, Jennifer, about Kim Fulbright (ph) and that‘s the fact of her body may be similar to that of Laci Peterson‘s.  What do we think they‘re going to do with her? 

LEDEEN:  Well we understand, Rikki, and she just began testifying, so I need to be a little careful here, but we understand that she was pregnant around the same time and she had a very similar size to Laci Peterson‘s body both in her weight and her height at the time that she was pregnant.  We believe that the prosecution is going to use her body type, if you will, to show how Scott may have managed to get a pregnant lady‘s body in and out of the small fishing boat. 

KLIEMAN:  OK, Jennifer.  Thanks so much. 

So, as we look at it, with testimony for the past two days, the prosecution switching its focus, making their key to the case, the location of the bodies.  Now they contend that Peterson dumped his pregnant wife‘s body off this small island in the San Francisco Bay and the water currents swept them to the shore. 

So let‘s bring in our legal team—attorney for Amber Frey, Gloria Allred, former and forever prosecutor Bill Fallon, and with me here at MSNBC Headquarters is criminal defense attorney and my dear friend Mickey Sherman. 

Mickey, I want to start with you.  This is the kind of testimony, about the location of the bodies that the prosecution has needed to put forth all along.  Why wait so long? 

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  I would have led with it.  Also, you have the shock value of it.  That alone is worth putting it out there first.  Let the jury have this vision in their mind from the get-go.  But, you know, it‘s a necessary part of it.  Does it nail it home?  No.  And you know what the number one show in the world is, if I‘m not mistaken, is “CSI”.

KLIEMAN:  I was so glad you...

SHERMAN:  Without...

KLIEMAN:  ... I could have guessed wrong...

SHERMAN:  Without a doubt, “CSI”...

KLIEMAN:  This is it.

SHERMAN:  ... and jurors love this kind of evidence.  But I don‘t think it‘s a slam-dunk for either side.

KLIEMAN:  No I don‘t think so especially not yet.  Bill Fallon, you have prosecuted many a case.  We are at day 20.  Now day 20 is a long way away from where this case began.  Is it too late to bring in this evidence now?  Should they have started, as Mickey said they should have, with this stuff?

WILLIAM FALLON, FORMER PROSECUTOR:  Rikki, I just think they could have reached it before day 20.  I‘m always troubled when you start with the slam-bam, thank you ma‘am type of thing.  That really pulls the jury in.  When you have such a long case, I‘m really not sure that it matters as much, but I would have liked it a little before day 20.  I think the only thing is we‘re a “CSI” society, but I think this case is going to be proved as a “Columbo” case, as I said. 

If everybody remembers back to that “Columbo”, it‘s going to be the small facts.  It is really not going to be the big facts.  “Columbo” put things together in a circumstantial way.  “CSI” just uses science.  So I think that we‘re going to have to take the jury back to that and it‘s always going to be Scott‘s reaction, inappropriate reaction.  It‘s going to be going back to that night.  I don‘t think it‘s a bad thing for them to have started on December 24.  I think as a prosecutor, I would have started on December 24, but somehow I would have tried to have brought this in before day 20 because they are not what I would call a scintillating prosecution.

KLIEMAN:  Gloria Allred, as Amber Frey‘s lawyer, we know that when we think of a “Columbo” prosecution, to use Bill Fallon‘s words, what we‘re looking at here is the affair and Amber Frey, lots of anticipation that she might have testified this week.  Of course, that was put to rest both by you and others.  When to you think we‘re going to hear from her? 

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Well Rikki, we don‘t yet know the specific dates on which Ms. Frey is going to testify.  But she will be ready and she‘ll be there when it‘s time for her to testify.  It‘s as simple as that.  There is quite a bit of evidence in this case and this is not the first time, by the way, that the jury is hearing about the bodies because remember, in the opening statement, the prosecution previewed the evidence that they were going to present and they did talk about the fact that these bodies were recovered in the way that they have been and they showed the photographs of the recovered bodies—may they rest in peace. 

KLIEMAN:  Fair enough and a good memory to bring back.  Mickey Sherman, one of the things that we learn about from Elena Gonzalez is the fact that actually a dog was gnawing on the body and those are the kind of facts that can make a jury say this is so horrific.  These crimes are so bad that we don‘t need a lot of evidence here.

SHERMAN:  Yes, usually the outrage factor, the—just the moral outrage will backfill where the evidence is lacking.  But you know, you have a dog gnawing on the part of the body, how much forensic value can that body have at that point? 

KLIEMAN:  Well it‘s apparent.  Because, Bill Fallon, one of the things that‘s really critical here is what we find in the autopsy report not only of course of Laci Peterson, but also of Conner. 

FALLON:  But you know Rikki, one of the cases like this, you‘re really not going to find as much forensic as you think.  I mean Geragos is going to be talking about it interestingly enough, you got to understand, a body of a young boy.  You know, trying to have it not be still in the fetal stage.  So I think you are going to still have a jury that is going to have to make some quantum leaps. 

They are not going to be able to find exactly what happened.  They might not even find exact cause of death.  That‘s going to be a question.  And I think the prosecution, by the way, should have brought that out at the beginning detector however they died.  Because I think that there are not going to be these big moments where we‘re going to know was she strangled, was she sliced, was she something else. 

I think one of the things about this horrificness of the crime is Geragos can have a field day saying it‘s a horrific crime just my guy didn‘t do it, which is why I go back to my “Columbo” analogy.  It‘s going to be those little types of reactions that‘s going to prove the malice in this case.  I‘m going to tell you, a jury—if I‘m the prosecutor, I‘m saying that cold-heartedness, that irresponsibility, that kind of I don‘t care about her—not just the affair.  Because when I make my closing, I‘m going to say I don‘t know if it‘s Gloria‘s client that is the reason.  We‘re saying it‘s Scott Peterson‘s cold heart that is the reason this murder happened. 

KLIEMAN:  Wow, Billy, I wish I could do that gesturing, you know, that wait a minute.  Wait a minute.  But I can‘t quite do it.  So you stay there.  Gloria is going to stay.  Mickey is going to stay.  All of you stay with us.

When we come back, we‘re going to get to one of the keys to the defense case.  Was Laci‘s baby born alive?  We‘re going talk with a medical examiner about whether we‘ll ever know.

Later, the testimony used to indict Michael Jackson has been secret until now, but not anymore.  We‘re going to get our first look at some of it.  How damaging is it to the prosecution? 

And, he is a poster child for corporate greed and now there‘s late word that Enron‘s former chairman, Ken Lay, has been indicted.  We‘ll get the details. 

Your e-mails—send them to abramsreport@msnbc.com.  Dan responds to some of them at the end of every show. 

Coming up, Scott Peterson.

(COMMERCIAL BREAK)

KLIEMAN:  Coming up, Scott Peterson‘s defense team lays the groundwork for one of the keys to its case trying to prove the Peterson baby was born alive.

(COMMERCIAL BREAK)

KLIEMAN:  Welcome back.  The defense in the Scott Peterson case laying the groundwork today for another one of the keys to their case, trying to raise more reasonable doubt in those jurors‘ minds.  They say that Peterson‘s baby, Conner, was born alive.  That the plastic around his neck seen here in this animation was placed there after birth, that it‘s not just a piece of debris as the prosecution contends.  But how plausible is this defense?  So, let‘s ask an expert. 

Joining me now forensic pathologist Dr. Werner Spitz.  Dr. Spitz, when we look at this kind of event and we look at this artifact and it‘s been animated for our viewers, as well as for us, what we see is what the defense believes.  But what about what the prosecution believes?  It‘s all based on science, isn‘t it? 

DR. WERNER SPITZ, MEDICAL EXAMINER:  Well, the picture that I‘m aware of shows a piece of plastic around the neck, but very loose.  And I can see both on that picture and what I have seen before, debris do wash up on people‘s bodies sometimes in a manner that is difficult to understand.  But in this case, I don‘t even think it‘s that difficult to understand because it‘s not knotted around the neck.  It‘s lying there in a loose way.  It could have easily washed up. 

(CROSSTALK)

SPITZ:  And I don‘t think that that is what killed the child. 

KLIEMAN:  One of the things we do know, Dr. Spitz, is that there was a storm and that there was lots of debris around.  However, we don‘t know that there is debris that seems like this debris.  Would that make any difference to you in terms of a scientific opinion?

SPITZ:  No.  Because how can we be sure of this or that debris?  Debris is debris.  And people throw garbage into the water and it washes up. 

KLIEMAN:  When you look at this particular case, isn‘t the real key for you about whether this baby was born alive after Laci‘s death or whether this baby was in Laci‘s body, doesn‘t it still have to be the autopsy finding? 

SPITZ:  Yes it has, but you have to consider the circumstances.  And you find the body of the mother with a big cut across her abdomen and the cut, according to the autopsy report, goes into the womb.  There is a lot of pressure inside the abdominal cavity of—inside the belly of a pregnant woman.  You have a huge uterus with a baby inside.  You have fluid inside of that.  You have her bowels that swell up from gas formation after death from decomposition.

All this will, when there is a hole, when there is an opening, push whatever is in the womb out.  And it is totally conceivable, totally understandable how the fetus would have been ejected once the opening is created by a passing boat, an outboard motor that cuts into the mother. 

KLIEMAN:  How interesting adding that last fact.  I want to bring back our legal team—Gloria Allred and Bill Fallon and here Mickey Sherman.  Mickey, listen to Dr. Spitz, if you were defending this case, listen to him, that would give you pause. 

SHERMAN:  Yes, but also, they‘re not only going to hear from the likes of Dr. Spitz, they are going to have dueling forensic pathologists on both sides here. So you‘re going to have at least two doctors telling the jury their impressions, their versions, their interpretations of what that tape, if in fact it means anything.  And you know when you have a lot of expert opinion and they‘re conflicting, that to me raises nothing but questions and questions equal reasonable doubt. 

KLIEMAN:  Well, perhaps.  Bill Fallon, when you have dueling experts they may absolutely cross each other out and then we‘re back down to your “Columbo” theory. 

FALLON:  You kick them out.  Rikki, as you know, one thing you say to a jury is you can either listen to them, but certainly there is enough evidence, whatever these guys are getting paid for their opinions.  Maybe we don‘t know scientifically.  This goes back to my theory exactly, the “Columbo” theory.

Science is not going to ultimately prove or disprove this case.  Whatever this jury feels that evidence is, they are going to be able to jump on the science that one of these people give, but it is not going to be proved by science any more than the cause of death.  I mean we‘re speculating when did the body—the baby get ejected.  I think the one of the forensic people is probably going to say it probably stayed within Laci sometime, which is why it was slightly more protected and therefore didn‘t get as decomposed.  I mean we don‘t know that.  It hasn‘t come out yet.  So I think it‘s going to be is the jury convinced he did it and then the science will follow. 

KLIEMAN:  Dr. Spitz, I want to go back to you for just one moment because you have certainly looked at enough of the literature involving this case, do you think it‘s going to be easy for the defense to find an expert on their side? 

SPITZ:  A knowledgeable expert, no.  I think...

(LAUGHTER)

FALLON:  That‘s never bothered the defense before, Doctor...

KLIEMAN:  Oh Billy...

UNIDENTIFIED MALE:  Is that right?

KLIEMAN:  ... no, I‘m not going to go that far.

SHERMAN:  Doctor, is that your expert opinion?

SPITZ:  No, that‘s the case of don‘t confuse me with the facts. 

KLIEMAN:  Well Dr. Spitz, I‘m going to thank you for taking the time to join us because you certainly have enlightened many of us. 

SPITZ:  Thank you.

KLIEMAN:  Now, Gloria, Billy, Mickey and I can call Billy, Billy. 

We‘re going to have more of all of you later, so you stick around. 

And coming up, it‘s nearly three years after Enron fell apart and its former chairman, Ken Lay, has finally been indicted.  We‘ve got late details. 

And later, Nathaniel Brazill was just 13 when he killed his teacher and now the teenager has fired his lawyer and wants to represent himself in court.

We‘re going to be right back.

(COMMERCIAL BREAK)

KLIEMAN:  One of the biggest names in the Enron corporate greed scandal, Ken Lay, the company‘s founder and former CEO who controlled Enron before its collapse in 2001 has been indicted.  As CNBC reported when it broke the story a few hours ago, the indictment has been sealed.  But we‘re going to learn more about what it contains once Lay surrenders to the FBI and that is expected tomorrow. 

The government has been investigating this case for more than two years and Lay is the last major Enron executive to be indicted.  The former head of finance for the company, that‘s Andrew Fastow, he pleaded guilty to two counts of conspiracy in January.  And yet another former CEO, Jeffrey Skilling is awaiting trial on insider trading, fraud and conspiracy charges. 

Joining me now to discuss what this indictment really means is “Newsweek” senior business writer Charles Gasparino, who has been covering the Enron scandal since it broke.  I got to tell you Charles, I love this story...

(CROSSTALK)

KLIEMAN:  ... because people said this was never going to happen...

CHARLES GASPARINO, “NEWSWEEK”:  Right.

KLIEMAN:  ... that Lay was going to escape.  That everybody was going to get named but not him. 

GASPARINO:  Right.

KLIEMAN:  So tell us what you think is going on.

GASPARINO:  Well, I mean, like a lot of people said he was going to escape but I really think the government had it out for him from the beginning.  I mean listen let‘s face it.  He was the chairman of the company that turned out to be one of the greatest frauds in financial history.  Of course there was going to be a lot of pressure on the government to make a case against him and they finally came out with their case.  At least we‘ll know exactly what it is tomorrow. 

KLIEMAN:  Well let me take your word.  Finally...

GASPARINO:  Right.

KLIEMAN:  ... why did it take so long? 

GASPARINO:  Well you know listen, financial fraud is notoriously difficult to prove.  I mean you have to prove something called intent and intent is very difficult to prove.  You need e-mail evidence.  You need a lot of circumstantial evidence if you don‘t have e-mails or a smoking gun.  And I think what we will see tomorrow is a lot of circumstantial evidence.

KLIEMAN:  Well, when we look at this case, we know that he‘s going to mount a mighty defense. 

GASPARINO:  Absolutely.

KLIEMAN:  So, if you were speculating, since you know a lot about the history of Enron, what might his defense be? 

GASPARINO:  Well I mean you‘ve got to look at what the charges are going to be and I think, at least the scuttlebutt is that it‘s going to resolve around two things, at least two things.  Number one, that he misled his employees during late 2001 when Enron was imploding and some of the top people at the company knew it.  He misled his own employees when he said the company was great and they should buy this stock.  That‘ll be the first thing.

Number two, he actually was selling stock at the same time.  And I think the charges will at least reflect those two aspects.  And his defense will be number one, that he was a true believer on the first count.  On the second count, on the selling stock, I think he is going to probably say that he had margin calls.  Like I said, there is a lot of gray areas here and it is not going to be an easy case to prove. 

KLIEMAN:  Well, I‘m going to continue to talk to you, believe you me.

GASPARINO:  OK.

KLIEMAN:  “Newsweek‘s” Charles Gasparino, I want to thank you so much for opening this conversation.

GASPARINO:  Any time.

KLIEMAN:  Thanks.

GASPARINO:  Thank you.

KLIEMAN:  Well back with me, our former prosecutor Bill Fallon and criminal defense attorney Mickey Sherman.

Bill, I‘m going to go straight to you because I really want to look at the prosecution side of this case.  We have gone up the ladder, up, up, up, up, but Skilling is still out there, so do you think they have enough to really drag Kenneth Lay down? 

FALLON:  Rikki, I think it is really going to matter, as your guest just said, what exactly the indictments are.  I think it‘s going to be very technical.  They‘re going to be some kind of—I‘m not going to call it insider trading, but they‘re going to try to do something that he can still say his wild spending doesn‘t really affect this.  Because I think—I‘m fearful, if I‘m the prosecutor that a good defense attorney says they have just bought every witness all the way up.  But I‘ll tell you, white-collar criminals do best turning evidence.  And I will just tell you that I think that we win cases—not we anymore, but prosecutors...

KLIEMAN:  Oh, Billy , always you...

FALLON:  Always me, OK.  Prosecutors win cases you know by turning—having somebody turn evidence.  I think—look at Martha Stewart.  I mean quite frankly, she is little fish in this type of money scheme and I think that they better be strong.  It took a long time.  Nobody could say it was a rush to judgment with Ken Lay.  But I think it‘s going to be a few charges—and I don‘t have any inside information—that are going to be very specific and really are not—just because he was a horrific spender, that‘s not going to be what kills him, although the jury is not going to be endeared to him for that.

KLIEMAN:  Well that‘s for sure.  Mickey Sherman, greed is good.  Gordon Greco (ph), you know this was like the Tyco defense.  This was hiding in plain sight.  Keep that home in Aspen.  Keep spending that money...

SHERMAN:  But that‘s what we expect these people to do.  That‘s just the nature of their lifestyle.  These are not sexy cases and the prosecution tends to over-try them and overcharge them.  You know they have got to bring it down to a level that the common man can understand.  And I think they‘ve got to really hammer home that he kind of cheated other people—maybe not directly but he misled them.  If I was him, I would be spending a boatload of money on people like Jo-Ellen Dimitrius right now, picking...

KLIEMAN:  Picking a jury...

SHERMAN:  ... trying to get...

KLIEMAN:  Jo-Ellen Dimitrius who did the Simpson jury...

SHERMAN:  ... that holdout juror for the Kozlowski case.  She got the

·         infamous juror number 5 who‘s on all the networks now...

KLIEMAN:  Oh we‘re going to talk about him later too, I assure you.

SHERMAN:  I think—that‘s where I would start spending some money, from the defense, on getting some jurors who are maybe a little quirky. 

FALLON:  So Mickey...

KLIEMAN:  Well, there always is one...

FALLON:  ... you just want a hung jury.

SHERMAN:  Yes.

FALLON:  Do you think you can get 12 jurors that are going to say like we don‘t care about Ken Lay.  I mean I think they can—they should be looking for a hung jury here...

SHERMAN:  No, you always go for the win.

KLIEMAN:  And in this case I think this is all or nothing at all. 

So I want to say first to Mickey Sherman, I want to thank you for joining me. 

(CROSSTALK)

KLIEMAN:  It‘s always great to have you...

SHERMAN:  Good to be here.

KLIEMAN:  ... especially sitting here with me.  Wait for me, you can give me a ride back.  All right, that‘s the deal. 

Bill, I want you to stick around because coming up, the Michael Jackson case.  The testimony a grand jury used to indict him has been secret until now.  We‘re going to take a look at it when we come back.

Later, a rare decision from a 17-year-old convict.  Nathaniel Brazill was just 13 when he shot and killed his teacher.  Now he has fired his attorney so he can represent himself in court. 

And your e-mails, send them to abramsreport@msnbc.com.  I‘m going to read some of them at the end of today‘s show.

(COMMERCIAL BREAK)

KLIEMAN:  Coming up, the first look at the testimony a grand jury used to indict Michael Jackson, but first, the headlines. 

(NEWS BREAK)

KLIEMAN:  Welcome back to the second half of THE ABRAMS REPORT.  I‘m Rikki Klieman.  I‘m sitting in today for Dan. 

Right now, we‘re having a rare look inside the grand jury that voted to charge Michael Jackson with crimes including committing a lewd act upon a child.  Grand jury testimony is supposed to be kept secret, but portions can be found inside a brief that was filed last week by Jackson‘s legal team and posted by the court today.  (UNINTELLIGIBLE) Santa Barbara Superior Court Judge Rodney Melville to set aside the king of pop‘s indictment.  Now according to this brief, the real villains of the story are prosecutor Tom Sneddon and his deputies. 

Among the Jackson team‘s claim, and I quote—“The prosecutors bullied and argued with witnesses.  The prosecutors became involved in personal arguments with other witnesses at least once.  The prosecutor vouched for his own version of events while not under oath and accused witnesses of lying.  Witnesses were told not to provide information to the defense.”

Now here is what the brief calls just—quote—“ One example out of dozens of D.A. Sneddon‘s bullying a witness.”  Mr. Sneddon is asking these questions—quote—“Did you at the time that you heard that these serious charges had been leveled against a worldwide known entertainer ever come to the D.A.‘s office and say hey, Mr. Sneddon, I‘ve got these or I‘ve heard about these or you might want to know this.  Did you ever do that before you went on national TV?  Answer:  No, I found the D.A.‘s office to be hostile when I called.  I found the head D.A., that being yourself, to be very uncooperative.”

So, let‘s bring in our legal team—child advocate and attorney for Amber Frey, Gloria Allred, who knows a lot about the Jackson case, former prosecutor Bill Fallon, and criminal defense attorney Dana Cole.

Dana, I want to start with you because certainly you have a familiarity with this case.  You are there in Los Angeles.  You have worked with Tom Mesereau.  This brief really gives us a bird‘s eye view into some portions of the grand jury transcript and I say this for the D.A.‘s office, it is not pretty. 

DANA COLE, CRIMINAL DEFENSE ATTORNEY:  Right.  Well I completely agree with you, Rikki, but one thing I wanted to say at first is that grand jury proceedings are secret, but once the indictment comes down, they are actually supposed to be released within 10 days and this case has been the exception to that rule, and a lot of things have been kept secret.  Finally Judge Melville agreed to release a redacted version or a crossed-out version of Tom Mesereau‘s brief to the court to try to get this case dismissed.  So you have to sort of pick through the pages and try to figure out what‘s going on with all the blank spaces and the cross-outs and it‘s slightly difficult to do, but there is no question that the fur is about to fly and Tom Mesereau has decided to you know make this somewhat personal and take Tom Sneddon on. 

KLIEMAN:  Well, there is no question about that.  In fact, I‘m going to actually call up part of the text of this.  And this is in a second portion that we have really looked at because I have not seen language like this in a long time.  And it really has to do with talking about the case itself.

And it goes on in the second section, if I can get that one, where it says, there is no case in the history in the state of California that has condoned anything like the abuse of power demonstrated in this grand jury proceeding.  It is a paradigm of what a prosecutor is not allowed to do behind closed door in a case in which the indictment must be set aside. 

Bill Fallon, I say that this brief is written for two reasons.  Tom Mesereau, I don‘t believe, believes that the case is going to be thrown out...

FALLON:  Absolutely not...

KLIEMAN:  ... but he believes that this is an educational document, primarily for the judge, but if in this case it is brought out to the public, it‘s an educational document for the public, too. 

FALLON:  Rikki, remember, Michael Jackson, a defendant, before he was a defendant, should have been a defendant last time, makes a record, “Tom Sneddon, you‘re a mean, mean man”.  And I think that they are going to try to live on that defense that the mean, mean man that he did the video about is in fact this guy.  Now I think Sneddon has been out of control, I said it from his first press conference, I was outraged by it.  I think it‘s inappropriate. 

I think he should dump the case because he shouldn‘t—I mean not that he shouldn‘t—it should be prosecuted, just not by him.  Let him take the stand because I think that you have to get out of people‘s minds that this is some kind of vendetta.  Sure, it is a vendetta if you think he committed this kind of atrocity before and I know it‘s not the worse of child molestation, but it‘s a repeated child molestation in Sneddon‘s mind...

KLIEMAN:  Well let me interrupt...

FALLON:  ... so I think he is a little out of control there.

KLIEMAN:  Billy, let me interrupt you for a moment just on the idea of vendetta and out of control and go to Gloria Allred because Gloria, you are mentioned in the grand jury and you are mentioned in this brief.  So if you haven‘t seen it yet, I‘m going to enlighten you and enlighten our viewers as to what this said.  And if we can look at the Jackson defense, drop the indictment, that‘s the fifth element, let‘s look at this.

Mr. Sneddon‘s motivation for his behavior and that of his deputies isn‘t relevant.  Any experienced prosecutor, were he thinking clearly, would have known that his behavior was inappropriate.  The fact that this is a career opportunity to indict a famous celebrity, the fact that Mr.  Sneddon has been boastful in the media months earlier, the fact that Mr.  Sneddon has been embarrassed by criticism of his prior conduct in the media, by people like Gloria Allred for not getting an indictment in 1993 is not within the purview of this motion to so determine. 

So, Gloria, here you are, it‘s the fact, says Tom Mesereau, that you criticized Sneddon way back in 1993 for not getting an indictment that is causing him to act this way now.  How do you respond to that? 

ALLRED:  Well, that‘s a left-handed compliment, Rikki...

KLIEMAN:  I think so...

ALLRED:  ... if I have ever seen one.  But you know this is preposterous.  Obviously, I have been a thorn in the side of Michael Jackson for many years, ever since 1993 or 1994 when I briefly represented the child who ultimately sued and of course settled with Michael Jackson, and I didn‘t represent the child at the time of the lawsuit or settlement, but before that, but I have continued to criticize Michael Jackson and call on the system to investigate and get to the facts in the case of Michael Jackson‘s conduct.  And—but the idea that Tom—that Mesereau somehow worked me into the brief is just ludicrous.

This is the oldest game in the world and I know Rikki you know this better than anybody, this is what a lot of defense lawyers will do, let—put on trial anyone other than their client, in this case Michael Jackson, put on trial the police, put on trial the prosecutor, attack witnesses who might come up against their client, try to deflect attention away from their client.  I don‘t think it‘s going to work in this case, but here they have tried it. 

FALLON:  Gloria...

(CROSSTALK)

FALLON:  ... you missed a big one though.  They always put the victim on trial...

(CROSSTALK)

FALLON:  ... and I think that that‘s a really important issue...

(CROSSTALK)

ALLRED:  Well that‘s obvious...

KLIEMAN:  ... you know because I have to go and I love you all and I wish we could continue this and Dana, I know you have 1,000 responses and we all think that Tom Mesereau knows how to play and he knows how to play hard.

So, I‘m going to thank all three of you and I guarantee you that at some point, we‘re going to have this discussion continuing.  Thank you Dana, Gloria, Bill.  Thank you for joining me. 

ALLRED:  Thank you.

KLIEMAN:  And coming up, he was just a 13-year-old student when he shot to death one of his teachers.  Now he is 17 and Nathaniel Brazill wants to represent himself.  We‘re going to talk to one of his lawyers who he has just fired. 

(COMMERCIAL BREAK)

KLIEMAN:  You may remember a shocking story out of Florida that began four years ago.  A 13-year-old student named Nathaniel Brazill shot to death one of his teachers in May 2000.  Brazill had been sent home from school.  He had thrown water balloons.  He later returned with a gun.

The middleschooler walked into the classroom of one of his favorite teachers, 35-year-old Barry Grunow.  Brazill said he wanted to talk to a classmate and when Grunow refused to let him in, Brazill pointed a gun at his face and shot him. 

A 911 tape revealed the shock from a teacher surprised the Honor Student was the one responsible for that shooting.

(BEGIN 911 CALL)

TEACHER:  Nathaniel Brazill, oh my gosh.  Nathaniel Brazill and he is a student here.

(CROSSTALK)

911 OPERATOR:  OK, he‘s the suspect?

TEACHER:  Yes.

911 OPERATOR:  OK, who‘s telling you that...

TEACHER:  ... a seventh grader.  One of our assistant principals.

(CROSSTALK)

911 OPERATOR:  Nathaniel Brazill.

(END 911 CALL)

KLIEMAN:  Prosecutors in the case made a controversial decision to charge that teenager with first-degree murder as an adult.  They claimed—quote—“The tragedy is what happened to Barry Grunow, not what happens to Brazill.”  Brazill admitted he brought the gun to school and pointed it at Grunow, but called the shooting an accident.  Jurors found Brazill guilty of a lesser murder charge and aggravated assault with a firearm.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  ... while the verdict is being read.  And Ms.

Galloway, would you kindly publish the verdict?

UNIDENTIFIED FEMALE:  Yes sir.  In the Circuit Court of the 15th Judicial Circuit Criminal Division in (UNINTELLIGIBLE) Palm Beach County, Florida, case number 00-06385-CF A02 Division “V” State of Florida v.  Nathaniel Brazill, defendant.  Verdict—we the jury find as follows.  As to count one, we find the defendant guilty of second-degree murder with a firearm, a lesser included offense as contained in the indictment.  We find that the...

(END VIDEO CLIP)

KLIEMAN:  A judge sentenced Brazill to 28 years in prison, the minimum sentence for both of these charges.  He is now 17 years old, serving his sentence in a youth facility at an adult prison in Florida and he‘s recently made a very puzzling decision.  Brazill has fired his attorney Jack Thompson and decided to represent himself when he argues for a shorter sentence. 

We have with us Brazill‘s fired attorney.  That‘s Jack Thompson and he joins me now along with Robin Shellow, who was part of Brazill‘s defense team during the sentencing phase of the trial.

Robin, let me start with you.  How did you get involved in this case? 

ROBIN SHELLOW, REPRESENTED NATHANIEL BRAZILL:  I got involved because the sentencing project out of Washington and the ABA asked me whether or not I would come in and consider doing the sentencing in Nathaniel‘s case.  And Malcolm Young and I went down and spent about a month and a half in Florida and really came in at the tail end of all of this. 

KLIEMAN:  And also coming in, if I can look at it, at the tail end, if I can go to the Jack Thompson, and Jack, when you got involved in this case, it certainly looked like you were going to continue to shepherd this young man through all of his post-trial motions, including the one we thought he was going to do now, going back to a trial judge to look for a lesser sentence, but no more you (UNINTELLIGIBLE)? 

JACK THOMPSON, REPRESENTED NATHANIEL BRAZILL:  Well, no.  I met with Nate in his prison setting and it was one of the most tragic conversations I have ever had.  I discovered evidence that I told the trial attorney at the time was likely there, but which he didn‘t look for.  It is there.  He is entitled to a new trial on the basis of newly discovered evidence, also medical evidence that we have as well as ineffective assistance of counsel.  And you know there—in the setup to this piece here, there is more than one tragedy here. 

I have represented the victims of school shootings in Paducah, so I‘m familiar with the loss that Mrs. Grunow has had and can never get over.  But there‘s also a tragedy here that a boy is going to come out of jail—unless something changes here, in 28 years, even though there is evidence that indicates that this was not murder.  It wasn‘t even the charge which he was convicted of.  Robin knows that too, Robin‘s organization and she personally do incredible work.  And I have spoken with her at length about this case.  This was a miscarriage of justice.  And it breaks my heart that Nate has been persuaded by his mother—in my opinion—to represent himself.  I have been practicing law for 28 years which...

SHELLOW:  I don‘t think that‘s fair...

(CROSSTALK)

SHELLOW:  I really don‘t think that‘s fair to say he was persuaded by his mother.  He‘s a 17-year-old kid...

THOMPSON:  Well, Robin, you told me on the phone...

SHELLOW:  ... and he‘s in adult prison.

THOMPSON:  ... you told me on the phone.

KLIEMAN:  Well let me interrupt...

SHELLOW:  He‘s a 17-year-old kid.

KLIEMAN:  ... let me interrupt on this issue...

THOMPSON:  You know Robin...

KLIEMAN:  ... because I think it‘s so fascinating...

THOMPSON:  Yes...

KLIEMAN:  Wait, wait, wait one second because let me go back to you for a minute, Jack...

THOMPSON:  Sure.

KLIEMAN:  ... because you have a child who says at the moment that he wants to represent himself.  You may or may not have a mother who says that she doesn‘t want certain things brought forth to the court. 

THOMPSON:  Right. 

KLIEMAN:  Whose life is it anyway? 

THOMPSON:  That‘s exactly right.

KLIEMAN:  That‘s my question here to you Jack and later to Robin.  But let me start, Jack...

THOMPSON:  Sure.

KLIEMAN:  ... because we‘re back to Nathaniel Tate, another child whose mother didn‘t want him to accept a plea where he might have had...

THOMPSON:  Right.

KLIEMAN:  ... a little bit of probation, a little bit of time, goes to trial, winds up, at least initially, first-degree murder conviction as an adult, no possibility of parole.  Times have changed, but nonetheless, you have a 17-year-old, is he competent to make a decision that says I‘m going to represent myself (UNINTELLIGIBLE)?

THOMPSON:  Well, Nathaniel is the client, but unfortunately what has happened here and Robin can say what she wants, but what has happened here is the mother because she doesn‘t want disclosed her own level of culpability in this tragedy, this double tragedy, has influenced her son to not have an attorney to bring these things out.  And I agree with Robin, which is what she is going to say that, you know, he can make this decision himself.  But when you are a kid put in jail at the age of 13 and you have an overbearing mother such as this one—and the father wants me to represent him.  His prior attorney wants me to represent him—and told Nate that this was a mistake.  So unfortunately, Nate does have a fool for a client. 

KLIEMAN:  Let me just ask you, Robin, I‘ve got about 15 seconds.  I want you to give me a final thought on this.  I think this is really troubling. 

SHELLOW:  It‘s really troubling because when kids are tried as adults, lawyers are put in the position of acting as both their Sixth Amendment legal counsel, as well as Guardian ad Litem for parents who say please help my son make a good decision when, in fact, the law says these are his decisions.  If we‘re going to try kids as adults, we need—they need to have the full rights of adults and that‘s the real problem. 

KLIEMAN:  Well...

(CROSSTALK)

KLIEMAN:  ... indeed it is.  And Robin, I want to thank you.  Jack, I want to thank you. 

THOMPSON:  Thank you.

KLIEMAN:  This is really a very provocative issue. 

Coming up, your questions on the Scott Peterson trial.  Why was Laci mopping floor a day after her maid cleaned it?  Many women viewers have a logical answer.

(COMMERCIAL BREAK)

KLIEMAN:  Coming up, the Supreme Court throws out sentencing guidelines, so judges across America should be happy, right?  Maybe not.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

KLIEMAN:  During the last 20 years, lawyers learned about a whole new world called the sentencing guidelines.  Many of us became competent at reading manuals and like mathematicians we studied grids to see where a defendant fell in the punishment scheme.  Some less skilled practitioners threw up their hands and found guideline experts in a new cottage industry born of legislation.  The public learned about the guidelines big time with the conviction of Martha Stewart as the legal eagle scrambled in the first 24-hour news cycle to state the potential punishment, we heard everything from six months to two years illustrating the confusion. 

She‘s going to be sentenced on July 18 and her guidelines are said to be 10 to 16 months, unless a judge would like to issue a downward departure, unless a judge would like to provide a split sentence.  One reason she didn‘t testify, according to experts, was that a judge might have considered her testimony and issued an upward departure.  That is give her more time rather than less.  But now in a different situation, the United States Supreme Court says more time cannot be added by a judge. 

In Blakely v. Washington, the high court found that lengthening a defendant‘s sentence must be done by a jury after proof beyond a reasonable doubt of an aggravating factor.  The whole idea behind the guidelines was to have uniformity.  But sometimes uniformity is just not fair.  The criminal justice systems involve balancing.  Now judges who needed to have some discretion put back in sentencing may have lost even more of it. 

Do we really want jurors hearing facts that have little to do with a particular case?  The prosecutors and judges seem in disarray.  The defense bar is applauding the decision.  Their clapping may be short-lived. 

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Now Dan is still getting the e-mails about the infamous juror number five, Justin Falconer.  The juror who was dismissed from that Scott Peterson trial and continues to give interviews about the case. 

From California, Vangie writes, “Our only regret is that you‘re giving too much attention to dismissed Peterson case juror number five.  We think he acts like an expert in jurisprudence or perhaps someone like Judge Napolitano or Professor Turley.  Is it right for him to prejudge the case if only to prolong his 15 minutes of fame?”

Now Dan has given a significant amount of airtime to juror number five, and I think he should continue to do so.  It‘s rare for us to be able to get that inside perspective that he has worked with, he‘s talked with, he‘s watched these other jurors, so he can offer all of us better clues about their collective thought process than many of the so-called experts, which I say to Dan, come on, I say just go ahead, bring him on. 

So, last night on the program we also learned that Amber Frey‘s attorney, Gloria Allred, asked this question—how many women in America think that Laci Peterson was really mopping right after breakfast when the housekeeper had been there the day before?

Bobbie Bayles from Albuquerque, New Mexico does.  “I am constantly amazed at the disbelief that any housewife might mop her kitchen floor the very next day after the maid had mopped it.  Now women who live in the real world know that many, many times a kitchen floor has to be mopped twice or more on the same day.  If you have children or pets, there will be times that messes are made.  Also grown adults are known to spill things on the floor, which means we get out the mop.”

Bobbie, I could not agree with you more.  I for one am one of those people who clean before my housekeeper comes.  Now Heaven forbid she should find anything in a mess and as great as she is, the next day I may track in some dirt from a morning run, so there I am cleaning away.  If it‘s not the mop, it‘s the dust buster.  No crumbs in my kitchen. 

Thanks to all of you for writing in.  Keep your e-mails coming.  Send them to the abramsreport—that‘s one word -- @msnbc.com.  Dan goes through them.  He reads them at the end of the show. 

Up next, “HARDBALL” with Chris Matthews.  Chris‘ guest tonight, Ralph Nader.

I‘ll see you back here tomorrow evening.  Have a great night. 

END

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